Better Building: The Responsible Developer's Blog : Northwest Construction Lawyers & Attorneys : Foster Pepper Law Firm : Sustainable Building & LEED Projects in Seattle & Spokane, WA

On February 7, 2011, Judge Bryan dismissed the Building Industry Association of Washington’s (“BIAW”) claims that certain newly enacted provisions of the Washington State Energy Code are preempted by federal law. The Washington State Building Code Council (the “Council”) promulgated the revisions, contained in WAC 51-11-0900 (“Chapter 9”), in order to comply with its statutory requirement to achieve a 15 percent reduction in annual net energy consumption in new construction, and originally set the effective date as July 1, 2010.   As we previously reported, BIAW filed suit in federal court in the western district of Washington on May 25, 2010, seeking an injunction and a declaratory judgment that Chapter 9 violated the Energy Policy and Conservation Act of 1975 (“EPCA”).

The main basis of BIAW’s claims was that Chapter 9 was preempted by EPCA, and therefore invalid. EPCA, as amended, set federal energy efficiency standards for certain "covered products, including heating, ventilating, and air conditioning equipment (“HVAC”) and water heaters, as part of its energy conservation program.  (EPCA is responsible for the familiar bright yellow energy conservation guides you see on new major appliances for sale in retail stores.)

As reported in one of our prior blogs, in a June 8, 2010 letter to the Council, Governor Chris Gregoire asked the Council to delay implementation of the revisions until April 1, 2011, for fear of further delaying the construction industry’s recovery from the recession. The Council did in fact delay the effective date to January 1, 2011.

BIAW had joined with various industry groups to bring their claims, and the NW Energy Coalition, Sierra Club, and others were allowed to intervene for the Council. Both sides brought summary judgment motions. EPCA expressly states that it preempts any state regulations concerning the energy efficiency of “covered products”, but did provide for exceptions, if a state code complied with seven specific requirements. The Council argued Chapter 9 fell within the exceptions, BIAW argued it did not.

In his 23 page opinion, Judge Bryan carefully analyzed each of the contested exceptions and, referring to a combination of legislative history, expert testimony, and computer simulations, found that Chapter 9 passed muster. Judge Bryan granted the Council’s summary judgment motion, denied BIAW’s motion, and dismissed the complaint.

As Washington and other state and local governments amend their energy codes to improve energy efficiency, there will likely be more challenges similar to BIAW’s.  Judge Bryan distinguished one challenge already decided in New Mexico, where a federal court granted an injunction against the City of Albuquerque’s high performance building ordinance because it was preempted by EPCA.

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EHB 2805, which was recently signed into law by Governor Gregoire, requires contractors on various Washington public works projects estimated to be over $1 million (certain project are exempt) to report information regarding certain off-site, prefabricated, non standard items produced outside of the state of Washington. The information must be provided as part of the contractor’s affidavit of wages paid form. The requisite information includes: (1) the estimated cost of the public works project; (2) the name of the awarding agency and the title of the project; (3) the value of the off-site, pre-fabricated, non-standard project specific items produced outside the state of Washington; and (4) the name, address, and federal employer identification number of the manufacturer of the off-site, pre-fabricated, non-standard project specific items. To review the bill, click here.

Contractors
The teeth behind the new law is that a contractor’s repeated failure (more than once) to provide this information means the contractor is not “responsible”, which would preclude the contractor from bidding on other projects.

Public Owner Requirements
Public agencies must put the reporting requirements in their bid documents. Requisite form language is found at the General Administration Office website, by clicking here.

Questions?
Various questions are addressed on Labor and Industries’ website including, What projects are exempt? When does the law go in effect? What happens to contractors and subcontractors who do not comply with the new law? Click here.
 

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Does responsible development sometimes require that the best highest use of land is to preserve it as open space?  A growing number say yes!

For decades, glossy real estate ads have raved about vacant land with “waterfront”, “mountain view” or “sound view”, making many believe that the best highest use of such land was to develop it for human occupancy. Thankfully many now observe that due to the rapid development of the last 3 decades, the open spaces in Western Washington are shrinking. Many in the real estate development community now advocate that the best highest use of open spaces like waterfront and mountain views is to preserve them.

A recent and great example is the preservation of such precious spaces was accomplished earlier this month when a partnership resulted in the preservation of 94 acres in Puget Sound known as “Devils Head .” The acquisition of this land for $3.4 million was a joint venture with funding from government agencies, the Washington Wildlife and Recreation Program  the Salmon Recovery Funding Board  and the Pierce County Conservation Futures Program and a big assist from the Cascade Land Conservancy.

The Cascade Land Conservancy reported that this acquisition could link trails with existing open spaces to create a trail system 20 miles long. A huge positive step considering that over the last 3 decades more than 2 million acres of open spaces have been subsumed by sprawling development. Ironic that the open spaces that drew people to these areas have in large part, vanished. The Conservancy has long been concerned that over development has intensified flooding and erosion and is contributing to warmer weather and other negative climate change. In 2005 the Conservancy launched a plan called the “Cascade Agenda” that over 100 years would acquire the conservation and preservation of 1.3 million acres of waterfront and mountain view open spaces.

This recent achievement also seems to be in sync with Governor Gregoire’s Smart Communities Award program that recognizes actions like innovative and wise land use and resource management, and that recently acknowledged Skagit County for its county wide urban growth area open space plan. 

So it appears that due to responsible development, that the glossy real estate ads in the not to distant future may rave about homes that are just a short bike ride or walk away from forever preserved open spaces with “waterfront” or “mountain view” or “sound views.” Let’s hope so.         

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Washington Governor Christine Gregoire just wrote a letter to John Cochran, the Chair of the Washington State Building Code Council asking him to defer the new energy code until April 2011.  Gregoire's concern is of the probable negative impact the code would have on the recovery of the economy and the construction industry.

The Governor's request is timely given the lawsuit filed recently by the BIAW (that we posted earlier).

We also posted two questions in April and May about green codes: "Can homebuying consumers bear the cost of new green and energy codes during recession?" and "Should green building codes be mandatory?"  Both questions appear to have been answered by the Governor.  In the long term, Green can be affordable, but in the short term, during hard economic times it may have to be deferred or remain voluntary.  

It seems that between the executive, legislative and judicial branches of our state government that until the recession is over, there should be no further mandates requiring taxpaying citizens and businesses to pay more for greener and more energy efficient homes.  However, once recovery happens and the construction industry exhausts existing supplies of non-green materials and components, that the cost benefit of green energy efficient materials and components may be mandated and embraced by all Washington residents for the obvious future long term benefits.  

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Leading the way was California who at the beginning of the year said yes we can! 

California was the first state to adopt a Green Building Code “CALGREEN”.  Ironic given CA also has the worst budgetary woes.  Still, Governor Schwarzenegger proclaimed that this action "lays the foundation (pun intended?) for the move to greener buildings constructed with environmentally advanced building practices that decrease waste, reduce energy use and conserve resources.”  The California Air Resources Board estimates that the mandatory provisions will reduce greenhouse gas emissions by millions of metric tons by 2020.  So far some cities and counties may have followed suit but not other states.

If the golden state can officially go green when swimming in red, should Washington do it too?

Some have advocated that efforts to make green building required by code would be too much and should remain voluntary. Even though in 2008 Governor Gregoire signed then unprecedented legislation making Washington the fourth state in the nation to adopt comprehensive limits on global warming pollution and recently reported that green jobs in WA actually increased in the recession, she has not taken the next step to propose a code that would mandate what CALGREEN has.     

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